Our readers may recall that last year, the Supreme Court ruled that a plaintiff in a putative class action cannot subvert the discretionary nature of Rule 23(f) interlocutory review by voluntarily dismissing his case after denial of class certification to obtain an appeal from the denial of class certification as a matter of right.  We blogged about that decision here. Earlier this summer, the Supreme Court granted certiorari in yet another Ninth Circuit case involving Rule 23(f) interlocutory review. On August 20th, petitioner Nutraceutical Corp. filed its opening brief urging the Court to rule that district courts cannot equitably toll Rule 23(f)’s fourteen-day time period in which a party must seek immediate interlocutory review of an order denying or granting class certification.In 2013, Troy Lambert filed a putative class action against Nutraceutical Corp., alleging that advertising for the “Cobra Sexual Energy” dietary supplement was false and misleading. The District Court initially certified a class, but after further discovery granted Nutraceutical’s motion for decertification in February 2015. Under Rule 23(f), Lambert had fourteen days from the date that order was entered to file a petition for permission to appeal this decision in the Ninth Circuit. Instead, during this fourteen-day window, Lambert’s attorneys made a verbal request in court to file a motion for reconsideration. The Court granted this request and set a briefing schedule that allowed Lambert to file its motion for reconsideration within twenty days of the entry of the decertification order. Lambert filed its motion on the twentieth day. The Court denied that motion, and Lambert then filed a Rule 23(f) petition within fourteen days of that denial. As a result, Lambert did not file his petition for interlocutory review of the decertification decision until more than three months after that decision was entered.

The Ninth Circuit held that it could toll or stay Rule 23(f)’s fourteen-day deadline under its equitable powers because this was merely a procedural deadline, not one after which the court lost jurisdiction over the matter. The Ninth Circuit found that Lambert’s attorneys’ verbal statement of intention to file a motion for reconsideration, coupled with the court-ordered briefing schedule, was sufficient to warrant equitable tolling of Rule 23(f)’s fourteen-day window in this case.

The Ninth Circuit’s decision got a rise out of Nutraceutical, which then filed a petition for certiorari with the Supreme Court, noting that the Ninth Circuit’s opinion created a circuit split as to the standard for when Rule 23(f)’s deadline can be equitably tolled. The Supreme Court granted certiorari in June. On August 20th, Nutraceutical filed its opening brief in which it argued that Rule 23(f)’s fourteen-day window should serve as a “strict and unyielding deadline that precludes equitable exceptions.” This fourteen-day window is purposefully short, according to Nutraceutical, to reduce the “delay, disruption, and waste of judicial resources” caused by interlocutory appeals. Nutraceutical also argued that allowing the Court to exercise its equitable discretion to extend this deadline would create uncertainty.

In the coming months, additional briefs will be filed and the Supreme Court will hear oral argument. The case is Nutraceutical Corp. v. Lambert, Dkt. No. 17-1094. Watch this space for further updates.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.